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A subpoena is a legal, court-issued document requiring you to attend a court hearing, or produce certain documents relating to a trial. There are regulations around the issue of a subpoena in NSW, and if these are adhered to, in most cases you will be required to comply. There are a few exceptions to this rule – if you believe that the information requested places too much of a burden on you, or if you feel the request is unreasonable.

If you have been issued with a subpoena to produce documents, and you don’t feel it is reasonable for you to comply, it is essential that you seek legal advice. In some circumstances, it is possible to request the court registrar to set aside a subpoena. This is a far better alternative than simply not complying, which can lead to charges of being in contempt of court, which comes with hefty penalties.

On what grounds can I ask the court to set aside a subpoena?

There are a few circumstances where it may be considered reasonable to request that the court sets aside a subpoena that has been served. These include:

The terms of the subpoena are vague and not specific enough about the exact documents that are required.

The number of documents requested or the amount of work it would take to obtain them is not in proportion to their value in the case.

The documents being requested are more speculative, with the intention of seeing whether there is a case than being relevant to the actual case being presented.

The documents are not relevant to the case.

There are confidentiality restrictions around the documents and providing them would breach these terms.

Speak with a lawyer if you are unsure whether or not you can apply to have a subpoena against you set aside. They can advise you, and if necessary assist you in the process.

How do I get a subpoena set aside?

To successfully get a subpoena in NSW set aside, you will need to file and serve a ‘notice of motion’ to the party requesting the subpoena. This will need to be directed to the court that has issued the subpoena, and must clearly explain the grounds for requesting the subpoena to be set aside, along with as much supporting evidence as possible.

In cases where the objections are due to the terms of the subpoena itself, or its wording, the issuing party may decide to issue a new subpoena once the information has been received. In other cases, subpoenas can be altered to amend some of the terms and requests if they are considered too onerous.

Applying to request that a subpoena be set aside will not always result in success. If your claim is not considered reasonable, you will still be required to comply with the terms of the original subpoena. In other cases it may be altered or amended so that it is more acceptable, and you will need to adhere to the new terms.

If you believe that a subpoena served on you is unreasonable or you wish to file a notice of motion for any other reason, it is a good idea to seek legal advice. An experienced lawyer will be able to advise you on your likelihood of success, and help you file the application.